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Ontario Human Rights Tribunal Awards $25,000.00 in Damages for Loss of Dignity and over $100,000.00 in Lost Wages for Discriminatory Termination of Two Year Employee

In September 2005, the Humber Institute of Technology hired Ms DeAbreo into the position of Educational Manager for its Corporate Education Centre.  On February 23, 2006 she was admitted to hospital with advanced cervical cancer and began an eleven month medical leave.

DeAbreo returned to work on a gradual basis beginning in January 2007.  In the spring, the applicant’s working hours had already surpassed the amount recommended by her physician, but there was no set timeline for her return to full-time work, which concerned the employer who felt it was losing business.  On June 28^th, 2007 Humber terminated the applicant, relying on its opinion that the employment contract had been frustrated by the applicant’s inability to work full-time.  When Ms DeAbreo refused to accept a one year contract position in the Corporate Education Centre on a part-time basis with reductions to both pay and benefits, the employer terminated her and provided her with three months’ pay.  The three months’ pay represented an amount greater than that to which she would have been entitled in lieu of notice of termination at common law, but Ms DeAbreo applied to the Human Rights Tribunal for a ruling that Humber had violated the Ontario Human Rights Code (the "Code").

Since it was agreed that the termination resulted from the applicant’s disability, the onus shifted to the employer to show that it did not offend the applicant’s rights under the Code.  The employer made three arguments: 1) the offers of temporary part-time work constituted appropriate accommodation; 2) if the offers were not appropriate accommodation, then there could be no accommodation without undue hardship for the employer; 3) no accommodation could have assisted the applicant in her job duties in the foreseeable future, so there was no duty to accommodate.

The Tribunal held that the respondent did not offer appropriate accommodation.  In part, the Tribunal stated that the objective of accommodation is that an employee who is able to work can work.  A planned termination after one year of part-time work does not satisfy this objective.  Secondly, the Tribunal held that Humber had the resources to accommodate the applicant in employment without incurring undue hardship through such means as placing her in another part-time position with Humber, outside of the Corporate Education Centre, until she was ready to resume her regular job.  Finally, the Tribunal rejected the respondent’s final argument and held that five-months of having the applicant return to work part-time did not give sufficient indication that it was impossible to accommodate the applicant for the foreseeable future.  The employer therefore violated the Code when it failed to accommodate the applicant’s disability.

In this case, the Tribunal awarded the applicant with $113,300.00 for lost pay.  The Tribunal rejected the respondent’s argument that the applicant failed to mitigate by accepting a part-time position offered by the respondent upon termination, stating that an applicant need not capitulate to injustice by accepting inappropriate accommodation.

Further damages were awarded for injury to feelings, dignity and self-respect in the amount of $25,000.00.  The Tribunal noted that the respondent was a large employer with the means and resources to accommodate the employee, yet decided to terminate the employee and discontinue the benefits on which she clearly relied for her long and continuing convalescence.  The applicant was in a fragile state as she began her return to work, and stated she was shocked and blindsided when the respondent terminated her in violation of the Code.

This decision gives a clear indication that the Human Rights Tribunal is willing to make applicants “whole” by awarding damages for loss of dignity and hurt feelings in addition to monetary losses.  Employers have to ensure that they deal with their employees in a fair and equitable manner so that they do not run afoul of the Code, or risk an unpredictable assessment of damages against them from a Tribunal that can go far beyond common law damages for wrongful dismissal.

[DeAbreo v. Humber Institute of Technology, 2010 HRTO 2404 (Diamond)]

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.